Ohio, Utah court rulings threaten marriage bans

Tuesday

Dec 24, 2013 at 12:01 AMDec 24, 2013 at 10:52 AM

Gay-rights activists were celebrating after two court victories yesterday.????? A federal judge in Cincinnati ordered Ohio authorities to recognize gay marriages on death certificates, saying the state's ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don't like homosexuality.

Gay-rights activists were celebrating after two court victories yesterday.?????

A federal judge in Cincinnati ordered Ohio authorities to recognize gay marriages on death certificates, saying the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.

In Utah, a federal judge allowed gay marriage to continue in that state, rejecting a request to put same-sex weddings on hold while the state appeals a decision that has sent couples flocking to county clerk offices for marriage licenses

In the Ohio case, although Judge Timothy Black’s ruling applies only to death certificates, his statements about Ohio’s gay-marriage ban are sweeping, unequivocal and expected to incite further litigation challenging the law. State Attorney General Mike DeWine said the state will appeal.

Black cited the Supreme Court’s June decision striking down part of a federal anti-gay-marriage law, saying that the lower courts now are tasked with applying that ruling.

“And the question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004),” Black said in reference to the year Ohio’s gay-marriage ban passed. “Under the Constitution of the United States, the answer is no.”

Eighteen states and the District of Columbia allow same-sex weddings, up from six before the Supreme Court decision.

Black wrote, “Once you get married lawfully in one state, another state cannot summarily take your marriage away,” saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.

Black referred to Ohio’s historical practice of recognizing other out-of-state marriages even though they can’t legally be performed in Ohio, such as those involving cousins or minors.

Black’s decision stems from a lawsuit in July by two gay Ohio men whose spouses recently had died and who wanted to be recognized on their death certificates as married. The two couples had been married over the summer in states that allow same-sex marriage.

Black said “There is absolutely no evidence that the state of Ohio or its citizens will be harmed” by his ruling but that without it, the harm would be severe for two men who filed the lawsuit because it would strip them of the dignity and recognition given to opposite-sex couples.

DeWine said the state will take its case to the 6th U.S. Circuit Court of Appeals. He called yesterday’s decision “not a huge surprise,” given earlier rulings Black made in the case.

“Our job is to defend the Ohio Constitution and state statutes … and that’s what we intend to do,” DeWine said.

Judge Robert J. Shelby overturned Utah’s ban on same-sex marriage on Friday, ruling the voter-approved measure is a violation of gay couples’ constitutional rights. The state then asked him to put a stop to the weddings, but he rejected the request.

Shelby’s ruling is far from the end of the legal wrangling on the topic. The state quickly filed a request with the 10th U.S. Circuit Court of Appeals to put gay marriage on hold. That court could rule on that as soon as today. The same court, in Denver, likely will hear the full appeal of the case several months from now.

In the meantime, the rush on marriage licenses continues for gay couples across Utah.

Nearly 700 gay couples have obtained marriage licenses since Friday, with most coming in the state’s most-populous county.

People began lining up Sunday night at the Salt Lake County clerk’s office in the hopes of getting licenses amid the uncertainty of the pending ruling. Couples then got married once every few minutes in the lobby to the sound of string music from a violin duet.

Adam Blatter said he was in a panic to get married yesterday morning before a judge could halt the issuance of licenses. He and his partner, Joseph Chavez, were elated when it became clear their wait was worthwhile, and they were shocked that it was happening in a state long known as one of the most-conservative in the country.

“We expected Utah to be the last place we could get married,” Blatter said.

Even if the 10th Circuit grants a stay, the marriage licenses that already have been issued probably will remain valid, said Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage. It’s not entirely certain, however, because Utah’s situation has unfolded differently than other states’, and there’s no direct precedent, he said.

The appeals court already has rejected two previous requests from the state because of procedural issues, but it has not yet considered the case based on merits.

Shelby’s decision to overturn Utah’s same-sex marriage ban has drawn attention, given the state’s long-standing opposition to gay marriage and its position as headquarters of the Mormon church, which teaches that homosexual activity is a sin. The ruling makes Utah the 18th state where same-sex couples can legally wed.

In court yesterday, Utah lawyer Philip Lott repeated the words chaotic situation to describe what has happened in Utah since clerks started allowing gay weddings. He urged the judge to “take a more orderly approach than the current frenzy.”

“Utah should be allowed to follow its democratically chosen definition of marriage,” he said of the 2004 gay-marriage ban.

Lott later said the state was disappointed with Shelby’s latest ruling and would continue its legal battle.

In explaining his decision, Shelby said the state made basically the same arguments he had already rejected.

Legal scholars speculate that the case could someday be reviewed by the U.S. Supreme Court if the justices decide they want to weigh in on whether state same-sex marriage bans violate the U.S. Constitution.